“Pro Forma” Sessions Matter, Except When They Don’t

From Insider Online:

InsiderOnline Blog: January 2012

“Pro Forma” Sessions Matter, Except When They Don’t

One problem with the Office of Legal Counsel’s opinion saying the Senate’s pro forma sessions are really a recess during which the President may make a recess appointment is that it conveniently identifies these pro forma sessions as the period January 3 through January 23. “But,” says Todd Gaziano

the pro-forma sessions began when most senators left town on Dec. 17. Why not mention the even longer period of time, since that might ordinarily help the President’s argument? The answer is on page 21, where the opinion has to acknowledges that twice during such “pro-forma” sessions, the Congress actually passed bills that became law (on Aug. 5, 2011 and Dec. 23, 2011). Since the President signed these bills into law, it really had no choice but to admit that those pro forma sessions mattered.

The not-too-deft argument in the OLC memo is that the President is free to take the Senate at its word that it would not conduct business during any period it sees fit except that the basis for that assumption also applied from Dec. 17 to Jan. 3. With unanimous consent, such business clearly can and was conducted during the period of time that OLC ignores. Moreover, those facts defeat the repeated finding in the opinion that the Senate is not available to receive messages from the President and act on them. The action on Dec. 23 proves beyond any doubt that they can receive such messages, loudly and clearly, and can act when they want to do so. Their desire not to act cannot be converted so easily into an inability to do so.

For discussion of additional problems with the Office of Legal Counsel’s opinion, see: “Whitewash on Legal Appointments Won’t Work,” The Foundry, January 12, 2012.

Posted on 01/13/12 01:31 PM by Alex Adrianson | Blog Archive